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State v. Thomas

Supreme Court of New Hampshire

February 23, 2016


Argued: September 10, 2015


Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.


The defendant, Christina Thomas, appeals her conviction, following a jury trial in Superior Court (Lewis, J.), of first degree assault for knowingly causing serious bodily injury to a person under 13 years of age. See RSA 631:1, I(d) (2007). She argues that the trial court erred by: (1) admitting evidence of "other bad acts" committed against the victim and the victim's mother; and (2) not striking other testimony that she contends was inadmissible and prejudicial. We affirm.


The pertinent facts are as follows. In 2002, the defendant reconnected with E.A., a childhood friend. Shortly thereafter, E.A. moved in with the defendant and her family. In August 2003, E.A. gave birth to D.A. and continued residing with the defendant, who promised to help take care of the child. E.A. and D.A. lived with the defendant until 2010, when D.A. was removed from the home and E.A. left. During that time, several other individuals lived in the home, including the defendant's husband, the defendant's boyfriend, her six children, and several friends and acquaintances. E.A. and D.A. also spent time at the home of the defendant's mother, Peggy Starr.

When E.A. first moved in, she got along well with the defendant. Over time, and specifically after D.A. was born, the relationship deteriorated. After giving birth, E.A. weighed close to 400 pounds and was told by a doctor that she needed to lose weight. The defendant promised to help in this endeavor, and the two went on a diet and exercised together. Eventually, the defendant stopped being supportive and instead used forced exercise and the denial of food to punish E.A. E.A. had to run up stairs in the home; if she did not, or if she did not do so quickly enough, the defendant would hit her or not allow her to eat. E.A. would also be deprived of food if she did not complete chores that the defendant asked her to do. E.A. lost a significant amount of weight during this time, and ultimately weighed approximately 130 pounds when she left the home.

During this time, E.A. began to steal food, which prompted the defendant to lock the cabinets and refrigerator. The other adults and children in the home would report to the defendant if E.A. had eaten food without the defendant's permission. If she was caught, the defendant would hit her. E.A. was not allowed inside the house if the defendant was not home and was required to wait outside, regardless of the weather. For a period of time, she could not use the bathroom in the house or sit on the furniture, and the defendant often took away E.A.'s mattress, pillow, and blankets. Sometimes when E.A. did something "wrong, " the defendant put her in "timeout" and made her stand in the corner. The defendant also exercised control over E.A.'s money. E.A. received Social Security benefits (for which the defendant was the representative payee), food stamps, Temporary Assistance for Needy Families (TANF), and Women, Infants, and Children (WIC) benefits. The money and benefits were pooled for use by the household. Because E.A. had lost her driver's license, the defendant provided transportation for her and D.A. Starr also abused E.A. She or the defendant would beat E.A. for not running up the stairs, taking food, lying, not doing chores, or being obstinate or disobedient.

D.A. received similar treatment. He was hit or spanked, often with a board or a spatula, which left a scar on his leg. Purportedly to keep him from getting into things, D.A. was put in his crib with a piece of Sheetrock over it, tied to a bunk bed with a leash, or kept in a dog crate in the basement or an outdoor dog kennel, sometimes for hours at a time. The dog crate was also used for punishment. If D.A. soiled himself, he was washed with cold water, including one time during the winter when he was placed in a stream outdoors. On other occasions, he was placed in a snowbank or left outside on the porch in a trash bag. Nearly everyone in the household used racial slurs to refer to D.A.

E.A. participated in the abuse of her son. At the direction of the defendant or Starr, E.A. would hit D.A. with her hands or a spatula, put him in the dog crate, or tie him to the bed. If E.A. did not do as she was directed, she was beaten. Other than doing as she was told by the defendant or Starr, E.A. had little interaction with D.A. At first, this was by choice, but eventually she was not allowed to have contact with him. If E.A. did something for D.A. without the defendant's or Starr's permission, such as trying to feed him, both E.A. and D.A. were hit. The defendant acted as D.A.'s primary caretaker and held herself out to others as his guardian. D.A. called the defendant "mom" and addressed E.A. by her name.

For the first year of his life, D.A. was fed formula and grew normally. Around the time he turned two years old, D.A. began "ruminating, " meaning he would regurgitate food into his mouth, chew it, and swallow it again. He would also vomit food out of his mouth. These behaviors occurred almost every time he ate, at least several times per day. He also began eating such things as diesel fuel, his own feces, or animal feces. The defendant, who had assumed primary responsibility for feeding D.A., tried feeding him different foods to stop the ruminating and vomiting, but the problem continued. D.A.'s behaviors, particularly his ruminating, disgusted everyone at the house. The defendant believed that the behavior was intentional and began punishing D.A. for it, by hitting him or withholding food, occasionally for days at a time. D.A. was constantly hungry, but would not be fed if he screamed for food or cried about being hungry.

The defendant closely controlled what D.A. was fed. She told others in the house to ignore him when he cried or screamed for food. When D.A. began attending school in the fall of 2008, the defendant insisted that the school not provide D.A. with any food. She told school personnel that D.A. had "eating issues" and intimated that he had dietary restrictions, such as lactose or gluten intolerance. D.A. was always hungry and was fixated on food. The school attempted to arrange a consultation with a nutritionist, but the defendant did not allow it. The defendant would send D.A. to school with food, usually a peanut butter sandwich on gluten-free bread and carrot sticks, or tofu and vegetables. The defendant also told the school that D.A.'s ruminating was "learned behavior" and "voluntary, " and requested that the teacher or paraprofessional take away part of his snack every time he ruminated, misbehaved, or cried. School personnel went along with the defendant's request at first, but eventually stopped. In response to having his food taken away at school, D.A. started eating his lunch on the bus before school. When this happened, the school would provide him with another lunch, even though the defendant insisted that D.A. not be given additional food so that he would "learn his lesson." Because her instructions were not followed, the defendant removed D.A. from school in or around December 2009.

D.A. barely grew or gained weight. In June 2004, when he was 10 months old, he was 29 inches tall and weighed 23 pounds, 2 ounces. Two years later, when D.A. was almost three years old, he was 35 inches tall and weighed 22 pounds. In March 2008, when he was four and one half years old, D.A. was 35 1/2 inches tall and weighed 22 pounds. The average height for a child that age is 42 inches, and the average weight is 40-45 pounds. Later that year he weighed less than 22 pounds. In April 2010, when he was about six and one half years old, D.A. weighed 23 pounds, six ounces - only four ounces more than he weighed when he was 10 months old. He was also developmentally delayed.

The New Hampshire Division for Children, Youth and Families (DCYF) received several reports of neglect and abuse of D.A. or E.A. between 2003 and 2010, but all were determined either to be unfounded or to not warrant investigation; no further action was taken until 2010, when D.A. was removed from the defendant's home and placed in DCYF custody. One report was made in February 2008 by a WIC employee who was concerned that D.A. was losing weight. The employee also contacted D.A.'s primary care physician, Dr. Christo, at Portsmouth Family Practice. An employee of DCYF then met with D.A., E.A., and the defendant. The defendant told DCYF that D.A. had an upcoming appointment with Christo.

D.A. had been seen at Portsmouth Family Practice in June 2006 by a physician's assistant, who, concerned with D.A.'s height and weight, requested blood work and scheduled a follow-up appointment for a few weeks later. The defendant did not bring D.A. to the laboratory for the blood work or keep the follow-up appointment. D.A. did not return until March 2008, following the meeting with WIC and DCYF. The defendant told Christo that D.A. ate "very well" and did not mention his vomiting. Unable to determine a cause for D.A.'s failure to grow, Christo referred D.A. to a pediatric endocrinologist. In May and June of 2008, D.A. was seen by an endocrinologist and a gastroenterologist at Dartmouth-Hitchcock Medical Center, who were also unable to discover the cause of D.A.'s "failure to thrive, " that is, his failure to grow. Following his June appointment, the doctors requested that D.A. return in four weeks; however, the defendant did not bring him back until November.

After further tests and an endoscopy revealed no abnormalities, D.A. was admitted to Dartmouth-Hitchcock and held for observation for about four days in September 2009. He was evaluated by a number of specialists, fed through a feeding tube, and allowed to eat on his own. The doctors could not determine a physical or psychological reason for D.A.'s failure to thrive. D.A. gained three or four pounds during the few days that he was at the hospital and was discharged with instructions that he "should continue to receive regular meals and snacks. He should not be restricted from eating. If he continues to ruminate, . . . this is not related to an illness, and he should be fed whenever he is hungry and at regular mealtimes."

D.A. was next seen at Boston Children's Hospital in December 2009. For the first time, the defendant reported that D.A. "had severe behavioral issues, " and Christo sought psychiatric referrals. Eventually, D.A. was admitted to Maine Medical Center in April 2010 and saw Dr. Ricci, a board certified child abuse pediatrician. The defendant told Ricci that D.A. was "suffering from some kind of psychiatric disorder" or "rumination disorder, " had a number of food allergies, and was unable to eat several kinds of foods. Ricci observed that D.A. had no problem eating and that he had scars from an inflicted injury, which indicated ...

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